Will Kenya’s Chief Justice Willy Mutunga’s cozy relationship with Raila Odinga affect the outcome of the election petition in front of the supreme court?

Chief Justice Willy Mutunga

This is a serious question asked by many analysts who are closely watching the deliberations taking place at the supreme court following Raila Odinga’a daft petition to have Kenya’s most peaceful and successful elections ever, nullified. Chief Justice Willy Mutunga happens to be very close to Raila Odinga. This fact is established in his admiration for Jaramogi Oginga Odinga, Raila Odinga’s late father. Rala Odinga’s apparent insatiable appetite for power, and the length he is prepared to go to disrupt the political process in order to become president of Kenya, puts unquestionable pressure on his close friend Mutunga as to whether he is the right man to chair the Supreme Court as it prepares to decide whether Kenyans should accept the results or go back to the polls. Having another election in Kenya will have a massive toll on the country’s economy, and most western governments and donors may not be prepared to fork out the necessary costs that comes with conducting another poll. Raila Odinga’s total disregard for the ramifications his actions would have on the entire country, is what may be regarded as totally absurd.

In 1992, Willy Mutunga joined the ranks of the country’s pro-democracy Young Turks, which included, among others, Paul Muite, James Orengo, Kiraitu Murungi, Gitobu Imanyara, and Raila Odinga. According to Wikipedia, most of the Young Turks drifted to active politics following the formation of the Forum for the Restoration of Democracy – Kenya in 1992 as an omnibus political movement. Mutunga, however, became the chairman of the non-governmental Kenya Human Rights Commission (KHRC), which he later also served as executive director. Mutunga served as vice chairman of the Law Society of Kenya (LSK) from 1991 to 1993 and chairman from 1993 to 1995.

Mutunga convened breakfast meetings of the then opposition stalwarts, Mwai Kibaki, Charity Ngilu, and Michael Wamalwa, to forge a common alliance ahead of the 2002 elections. The unity talks culminated in the creation of the National Alliance for Change as a single coalition of fourteen parties, later renamed the National Alliance Party of Kenya. The Alliance merged with defectors from President Daniel arap Moi’s Kenya African National Union and joined the Liberal Democratic Party (LDP) to form theNational Alliance of Rainbow Coalition (NARC). Mutunga declined an offer to serve as the chairperson of NARC, saying that his main interest was to unite the opposition and not to join active politics. The NARC won the 2002 elections. After the elections, Mutunga was one of the senior counsels appointed by President Kibaki in 2003 under Section 17 of the Advocates Act.

The NARC became the litmus gauge for Mutunga’s political neutrality, which lasted as long as the coalition elite stayed united by the post-election euphoria. As soon as power wrangles between the Kibaki and Raila Odinga factions of the NARC set in after 2002, Mutunga’s relations with the Kibaki administration grew frosty. On 8 April 2003, he turned down an appointment by President Kibaki to the university council of the Jomo Kenyatta University of Agriculture and Technology, saying that he lacked the right qualifications for the position and was not consulted before the appointment.

Mutunga drifted ideologically after 2003 to the portion of the NARC that identified with Raila Odinga’s LDP wing. In a 2003 interview with Raila’s biographer, Babafemi Badejo, Mutunga lauded Odinga as “an aggressive and astute politician” whose role in the 1997 National Convention Executive Council rallies showed him as a “great mobilizer and organizer”. His only misgiving was Odinga’s contradictory role as a “nationalist and a patriot” on the one hand and “an ethnic baron” who “uses both nationalist and ethnic cards for the advancement of his political project”. But he exculpated Odinga from this contradiction arguing that he “has always struggled against dictatorship and oppression and has been for social justice”. Ahead of the divisive 2007 presidential campaign, Mutunga threw his weight behind Odinga, saying “I am convinced Kenya’s transition needs Raila as the president of this country”.

With this backdrop, it is extremely easy to conclude that Mutunga’s presence as the Chairperson to decide the outcome of such a crucial phase in Kenya’s election process would be deemed as inappropriate to say the least. With such a unique relationship with Odinga, Mutunga should have excused himself from the proceedings, or issue a statement as to whether his neutrality can be assured. If the court rules in favour of Odinga, something which is highly unlikely, serious concerns of credibility might arise as to the suitability of Mutunga to preside over such an important deliberation.

Mutunga’s appointment as Chief Justice also drew fierce resistance. from his opponents. The fact that Mutunga was appointed as Chief Justice with no experience as a judge or legal practitioner is another matter for debate. Is he experienced enough to preside over what will be the sole determining factor that will decide Kenya’s immediate political future? Mutunga’s appointment became controversial when the church and various religious sections of the society resisted his public defence of the gay and lesbian communities. Mutunga’s wearing of a single earring, often associated with women, turned the spotlight on his sexuality and spirituality.

Mutunga asserted that the earring was a source of ancestral inspiration and not related to his sexuality. He also stated that he is not gay. However, the then Eldoret North member of parliament, and now deputy President-elect, William Ruto, said at the time, “We cannot have a Chief Justice who spots studs on his ears and claims he uses them to communicate with unseen spirits”. As a result, Mutunga categorically declared, “There is no way I can remove this earring even if I become the chief justice. If am told I must remove it to get the job of chief justice, I will say keep your job”.

What made the controversy more compounding, was Mutunga’s religious identity. He started as a practitioner of African traditional religion but in 2001 was baptized a Protestant and subsequently became a Roman Catholic and then a Muslim, although he still follows his ancestors. He says it was his ancestors who instructed him in 2003 to wear the earring as a connection to them so that they can protect him. Muslim groups and parliamentarians backed the appointment of a Mutunga. They pledged, however, to advise Mutunga to remove the earring as Islam does not allow male believers to put on ornaments worn by women.

Mutunga’s private life has also been up in the public domain for a while. On the 16th of December 2009, Mutunga filed for divorce from his second wife, Professor Beverle Michele Lax, a woman he married in San Mateo, California on 20 July 2000. She filed an answer and a counter-petition on 13 May 2010. She accused him of being a “pathological liar” who “kept an open relationship with his former wife” and “concealed the existence of his relationship with women whom he had sired children with”. Upon his nomination for chief justice, the proceedings became a subject of intense public scrutiny and media analysis. The nomination also raised the question of whether Mutunga would unduly influence the outcome of his divorce case should he be approved as chief justice. Mutunga denied that he would exercise such influence and asked the public to keenly follow the matter if he were appointed. The question now is, will Mutunga unduly influence the outcome of the petition in front of him and his colleagues?

The advice to Mutunga is to excuse himself from the proceedings and allow someone who doesn’t have credibility issues, with no close association to the unmitigated Odinga, and can take over the reins of deciding whether the 2013 election was rigged.